Drone Law Enacted as Part of North Carolina Budget Bill

On Saturday, August 2, the North Carolina General Assembly gave final approval to the Appropriations Act of 2014. The 260-page budget bill—which is now on the Governor’s desk—contains several pages governing the use and operation of unmanned aircraft systems (“UAS,” but known in common parlance as “drones”). The UAS provisions are similar to ones that were unanimously passed on June 25, 2014, by the North Carolina House, in the HB 1099.

Assuming the budget bill becomes law , what does its passage mean for North Carolina—which, by the way, should be aspiring to be “ascendant in UAS”—and for companies associated with, or in the production stream of, UAS? After all, the FAA appears to be far from achieving lift-off in its Congressionally-mandated UAS rulemaking proceeding: The U.S. Department of Transportation’s Office of the Inspector General recently observed in its June 26, 2014, Audit Report that the FAA “is behind schedule on most of the act’s [FAA Modernization and Reform Act of 2012’s] UAS provisions, and the magnitude of unresolved safety and privacy issues will prevent FAA from meeting Congress’ September 2015 deadline for UAS integration.” (It has been reported that President Obama may use an Executive Order to assign responsibility for generating UAS privacy regulations to the National Telecommunications and Information Administration (NTIA)—perhaps that would help bring resolution to the “unresolved privacy issues” referenced in the Audit Report.) And, while North Carolina was not selected by the FAA as a UAS test site, the North Carolina NextGen Air Transportation Center has obtained Certificates of Authorization (COA) to fly UAS in Hyde County, Butner, and elsewhere. So, again, with the FAA apparently stalled, and with NGAT operations taking off, what are the implications of the UAS provisions in the budget bill? It is difficult to say with certainty, but here are a few thoughts.

First and foremost, it means that the North Carolina General Assembly is paying attention. This is a good thing. To have the General Assembly engaged on this issue means that there are legislators who care about the technology and its economic potential and that there are commercial and governmental entities that are engaged and, in turn are engaging, legislators on the issue. This is important because NGAT cannot carry all the water alone to make North Carolina “Ascendant in UAS.”

Second, the General Assembly has recognized the continuing importance of privacy in a world where flying robots with cameras may soon become the norm. For example, the bill largely curtails the ability of people and entities—public and private alike—to conduct surveillance of people, their homes, and private property. (The legislation does not specifically define “conduct surveillance,” but judges and juries—not to mention cartoonists—are capable of working that out on a case-by-case basis.)

Third, the legislation shows the General Assembly’s astute recognition of the need to balance individual privacy with the critical function news gathering plays in our free, democratic society. Specifically, the legislation includes a provision exempting “newsgathering, newsworthy events, [and] events [and] places to which the general public is invited” from the general prohibition on “conducting surveillance.” Of course, the FAA’s current stance remains that it is illegal for journalists and newsgathering organizations to use UAS for newsgathering purposes (a position challenged earlier this year by several news organizations), but kudos to the North Carolina General Assembly for putting a high value on a free press and recognizing the importance of technological developments to the continued ability of newsgatherers to perform their critical societal function.

Fourth, the legislation restricts the ability of citizens to use UAS “to fish or to hunt.” Since the UAS provisions in the budget bill also make it a Class E felony “for any person to possess or use an unmanned aircraft or unmanned aircraft system that has a weapon attached,” the hunting limitation is reasonable, internally consistent, and, frankly, much appreciated. Although at least one commentator has suggested that the ban on hunting and fishing with UAS may be overly-restrictive because it may bar “using images from a small drone to help determine where to hunt or fish,” a close reading of the relevant provisions reveals that the bill only outlaws the use of UAS “to take” fish and wildlife and does not—at least not by its plain language—necessarily prohibit the use of UAS to find, track, or locate fish or wildlife for the purpose of engaging in non-UAS fishing or hunting. (CAVEAT: This is not a formal legal opinion about the scope of these provisions in the law!)

Finally, it cannot be ignored that the legislation contains the structure for the North Carolina Department of Transportation to establish a state licensing regime for UAS operators. It is admittedly difficult to argue with the wisdom of licensing commercial UAS operators. Nonetheless, the licensing provisions may have unintended consequences: the uncertainty they create may be viewed unfavorably by UAS stakeholders that might otherwise be interested in bringing business to North Carolina, the rightful epicenter of the UAS industry. While the potential federal preemption arguments would make for a fascinating discussion, any preemption discussion is premature, since we do not yet know what the FAA is going to do in this area. To be sure, the safety issues posed by commercial UAS operations are not to be taken lightly, and the General Assembly is to be commended for its foresight in that regard. On the other hand, as pointed out in the June 26, 2014, Audit Report, the FAA itself is struggling with how to safely incorporate small UAS into the national airspace—this may be an area better left to uniform, federal policy.

All UAS stakeholders that would like to see North Carolina ascend in UAS should be watching . . . I know my high school senior, for one, is . . . .

The Reporter's Privilege: Where Does The Proposed Federal Shield Law Stand And What Impact Would It Have?

The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court.

The most prominent recent example is the case of New York Times reporter James Risen, who wrote a book detailing the CIA’s effort to disrupt Iran’s nuclear program. The federal government sought to compel Risen’s testimony regarding his sources. The Fourth Circuit Court of Appeals ordered Risen to testify, and on June 2, the Supreme Court refused to hear Risen’s appeal. If the government does not withdraw its subpoena, Risen must testify or face jail time.

These events underscore the renewed calls for a federal “shield law” which would recognize a reporter’s privilege in federal cases. In late May, Rep. Alan Grayson (D-Fla.) proposed an amendment to an appropriations bill for the United States Justice Department and other agencies. The amendment states that none of the funds made available by the appropriations bill may be used to compel a journalist to testify about information or sources the journalist regards as confidential. The amendment passed with bipartisan support, and the appropriations bill itself passed the House. If the amendment survives Senate scrutiny and is enacted into law, it would apply to the Justice Department and federal prosecutors. But the amendment leaves some critical issues unaddressed. Specifically, it does not contain an exception for matters with potentially serious national security consequences, and it does not define who can claim protection as a “journalist.”

The House is not alone in contemplating how to recognize the reporter’s privilege. A Senate bill (S. 987) introduced in May 2013, referred to as the Free Flow of Information Act, passed through the Judiciary Committee in September. However, no subsequent action has been taken to bring the bill to the floor of the Senate for a vote, as there may not currently be sufficient support for the bill to pass (or survive a possible filibuster attempt).

The Senate bill is substantially more detailed than the House amendment to the appropriations bill. It would generally prevent federal entities from demanding a “covered journalist” comply with a subpoena or court order seeking to force the disclosure of protected information. The government still would retain the ability to compel disclosure when it is necessary to prevent certain consequences (death, kidnapping, substantial bodily harm, terrorist activities, or “significant and articulable harm” to national security). To invoke the protection of the proposed law, a journalist must have promised or agreed to keep the information in question (or the source of such information) confidential, and the information must have been obtained for the purpose of “engaging in journalism.” In the wake of revelations that the Justice Department secretly obtained communications records of Associated Press and Fox News reporters, the bill would also generally prevent the federal government from seeking similar information from journalists’ service providers.

The question of who is eligible to invoke the reporter’s privilege has been a significant issue during previous attempts to draft a federal shield law. Reporters have been concerned that any attempt to define a “journalist” could potentially lead to future government interference, including licensing of journalists. While the Society of Professional Journalists and Newspaper Association of America have acknowledged this issue, the organizations consider the Senate bill’s current definition of a “covered journalist” broad enough to merit support. Those eligible to invoke the privilege under the Senate bill would include college journalists, freelancers, bloggers, anyone working for a “news website,” and most anyone else who is gathering information with the intent to disseminate it in a public manner (as well as traditionally-employed print and broadcast reporters). It would, however, exclude certain groups like Wikileaks, whose principle function is merely to publish primary source documents that were disclosed without authorization. Importantly, the bill also would grant judges broad discretion to extend the reporter’s privilege to any party when doing so is “in the interest of justice,” helping ensure the law would be flexible enough to cover new and emerging media practices.

The impact the proposed law would have on cases like that of Risen is a point of considerable debate. This is particularly true with respect to the national security exception in the bill, which would allow the government’s interests to trump the reporter’s privilege in matters with national security implications. The language of the bill indicates that the government may only use the exception if the information being sought is intended to prevent a future act of terrorism or future harm to national security. Under this standard, a court could find that the identity of a source of years-old leaked information is not needed by the government to prevent such future harm. However, SPJ president Sonny Albarado has said he believes courts are so sensitive to the federal government’s national security interests that even the language of the Senate bill would not have been sufficient to protect Risen from being compelled to divulge sources. Despite these concerns, a host of professional journalism organizations, including Albarado’s SPJ, have backed the bill, believing its protections are a substantial upgrade over the current federal court climate faced by reporters.

While Sen. Chuck Schumer (D-N.Y.) stated in March that he believes it is “very likely” a shield bill will pass the Senate this year, the lack of recent movement has some observers skeptical. On June 11, 75 media companies and journalism organizations sent an open letter to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.), urging both to schedule a floor vote on the bill as soon as possible. Professional organizations, such as SPJ and the NAA, have called for members and others to contact undecided senators to convey interest in the bill’s passage.

The attention surrounding the Risen case has brought a renewed focus to years-old calls for meaningful federal recognition of a reporter’s privilege. This is an issue that warrants the attention of all journalists.

Editor's note:  Brooks Pierce summer associate Patrick Southern played a primary role in drafting this post.

N.C. Public Records Case Opens up Access to Agency Database

The North Carolina Court of Appeals recently decided a landmark case for public records law in the state. In that case, the panel of three appellate judges determined that the Automated Criminal/Infraction System (“ACIS”) database is subject to public disclosure under the North Carolina Public Records Act.

The North Carolina ACIS database is a database of criminal records compiled in real time maintained by the Administrative Office of the Courts (the “AOC”) for the clerks of superior court across the state. The database contains real-time criminal records entered by clerks in all 100 counties in North Carolina. In 2011, a group of news organizations and information aggregators (including Lexis) sued official representatives of the AOC and the Wake County Superior Court to demand disclosure of an index of the ACIS database. A lower court ruled in favor of the government and denied disclosure, and the plaintiffs appealed.

On appeal, the North Carolina Court of Appeals reversed the lower court and unanimously held that the database qualified as a public record maintained by the AOC that must be disclosed to the public. The decision is a win for newsgathering organizations.

The court concluded that the ACIS database is an electronic data-processing record and a compilation of individual county records. The ACIS database compiles and maintains each county’s individual records entered into a centralized database. The parties did not dispute that individual clerks of court could provide the criminal records for his or her county in response to a request, but the clerks could not provide the records from any other counties or make a copy of the entire ACIS database.

The AOC created, maintains, and controls the ACIS database and is the only entity with the ability to copy the database. Thus, according to the court’s opinion, the AOC, as the custodian of the ACIS database itself, is therefore responsible for providing copies of the ACIS records.

The case is an important precedent for the notion that electronic databases that compile and index public records are subject to disclosure by the agency that maintains the database—in addition to the individual public records held in such databases. According to the court, each database, itself, is a public record. The court concluded that while clerks maintain county criminal records, the ACIS database itself is a distinct public record of the AOC and in the agency’s custody. The AOC is therefore responsible for providing public access to the database under state public records law.

The court also reasoned that the fact that the information in an existing county record also exists in the electronic database does not relieve either agency of its obligation to disclose. So, an individual county clerk must still provide access to the public records in its custody, and a statewide entity in charge of a database must also separately provide access to the records in its custody. In other words, it does not matter if the records are duplicated in more than one location—each custodian has a unique obligation to provide access to public records that are within its control.


First in Flight, Tops in Tech, Ascendant in UAS: Drones and North Carolina

The next time you go for a long hike in a national forest with no cell phone service, you might want to take a drone with you so that you can send for help when you break your leg, dehydrate, and need help.

While you, as a non-commercial drone “hobbyist” or “modeler,” might—emphasis on might—not violate any state or federal law if you were to send a drone to facilitate your rescue, the same cannot be said for many other potential drone operators.  In fact, law enforcement in some states may not be able to send a drone to determine your specific location or provide you with medication, food, or water—Hunger Games style—because such activity could violate nascent state laws and regulations governing “surveillance.”  And the FAA has made clear that commercial drone use is generally not permitted at this time.  While UAS enthusiasts might wish to believe that the FAA’s position is in flux after the National Transportation Safety Board (“NTSB”) determined that the FAA could not impose a $10,000 fine on an individual in connection with his use of a drone to take photos of, and subsequently sell them to, a college campus the FAA has appealed the NTSB decision signaling that, for now, the FAA is holding firm to the prohibition.

But while the FAA considers how to adopt an appropriate regulatory regime to govern the use of drones for commercial purposes, a great deal of activity is underway at the state and local level.  Numerous state legislatures across the country have been considering—and in some instances adopting—bills to limit the use of drones by law enforcement, government agencies, and other entities and persons.  North Carolina, for example, has convened a Study Committee to consider whether the time is ripe for UAS legislation and, if so, what the contours of such legislation should be.  In fact, draft legislation will be the subject of discussion at the Study Committee’s final meeting in April.

At a minimum, newsgatherers of all stripes need to be mindful of and involved in state and local legislative activity that may restrict the use of UAS for newsgathering purposes.  It is not hard to understand how and why the potential invasion of privacy implicated by overzealous UAS use would capture the imaginations of legislatures everywhere, but UAS use is in its infancy, and even well-meaning legislation could hinder development of UAS applications.

While it is relatively easy to understand the privacy concerns and potential Fourth Amendment implications of drone use by law enforcement and other government organizations, it is equally easy to understand the tremendous potential presented by commercial UAS use.  North Carolina has the potential to be the epicenter of the drone industry and could be viewed as a center for development of commercial (and non-commercial) drone applications and activities.  The NextGen Air Transportation Center is headquartered at North Carolina State University, North Carolina has a variety of climates and topography in which to test and study drone use, and the state is home to numerous technology companies.  Moreover, as recently as 2012, Raleigh was recognized as a top city for tech jobs.  Even though the FAA may have declined to select any location in North Carolina as a UAS test site, North Carolina is fertile ground for UAS ascension.  All UAS stakeholders need to pay attention now to ensure that North Carolina remains fertile ground for drone development.


Second Circuit Denies En Banc Review of Aereo Decision

The U.S. Court of Appeals for the Second Circuit denied today a petition for review, en banc, of an earlier decision by a three-judge panel of the Court that had ruled in favor of Aereo and against broadcasters in a case that originated in the Southern District of New York.

On April 1, 2013, the panel concluded in the case that Aereo’s service did not violate the broadcasters’ exclusive right to “publicly perform” their copyrighted television programs. Broadcasters asked the full Second Circuit Court to review that decision, but a majority of judges declined to rehear the case. Two judges issued a strong dissent, explaining that the panel decision had “already had a significant impact on the entertainment industry” because it threatened to undermine the retransmission consent regime vital to broadcast television.

Although the order denying rehearing is a disappointment for broadcasters, the decision is limited to broadcasters’ request for a preliminary injunction on the “public performance” issue. The case against Aereo is moving forward in the district court, where the parties have asked the court to rule on other aspects of the broadcasters’ copyright claims.

In a case involving a similar Internet streaming service, FilmOn X (originally “Aereokiller”), a federal district court in California ruled in favor of broadcasters and granted a preliminary injunction prohibiting the service from operating within the states encompassed by the Ninth Circuit. FilmOn X has appealed that decision to the Ninth Circuit, which is scheduled to hear argument on August 27th.

DOJ Leak Investigations Raise First Amendment Concerns

Many journalists, constitutional lawyers, and plain old average Americans have expressed alarm at recent revelations about the Obama Administration’s “unprecedented number of leak investigations.”  Perhaps most notably, James Goodale, who represented the New York Times in the Pentagon Papers case, has argued that the President is on his way to surpassing Richard Nixon as “the worst president ever on issues of national security and press freedom.”

Of primary concern appears to be the Justice Department’s investigation of Fox News reporter James Rosen.  As is well-known by now, the DOJ applied for and received a warrant to search Rosen’s personal emails in connection with a 2009 story about North Korea’s nuclear plans, describing Rosen in its search warrant application as “an aider and abettor and/or co-conspirator” who, along with former State Department arms expert Stephen Kim, allegedly violated the Espionage Act of 1917.  

In labeling Rosen a “co-conspirator,” the DOJ has advanced what some have called a “newfound” legal theory, which appears to be that a reporter who solicits and then publishes classified information can be the subject of a criminal prosecution.  In other words, investigative journalism into areas implicating national security might be unlawful.    

The DOJ hooks its legal argument on Section 793(d) of the Espionage Act of 1917, which states in part:  “Whoever, lawfully having possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States . . . willfully communicates, delivers [or] transmits . . . the same” shall be fined or imprisoned.

Section 793(g) of that Act makes a conspiracy to violate Section 793(d) a violation as well.  The Administration’s theory in securing a warrant was that Rosen, in effectively working his source to obtain and then publish classified information, may have broken the law.  In other words, Section 793 applies to the press, notwithstanding the First Amendment.     

It’s a legal theory that has received widespread criticism.  In the 1971 Pentagon Papers case, two members of the Supreme Court, Justices William O. Douglas and Hugo L. Black, appeared to reject the argument that the Espionage Act applies to the press in their concurring opinion.  More recently, James Goodale has expressed his concern that the government “wants to criminalize the reporting of national security information.  This will stop reporters from asking for information that might be classified.  Leaks will stop and so will the free flow of information to the public.”  Numerous journalists and First Amendment watchdogs have decried the chilling effect the DOJ approach might have on national security reporters.

By contrast, however, noted First Amendment scholar Eugene Volokh sees a distinction between actively soliciting, obtaining and then revealing classified information, and the mere publishing of classified information by an “unconnected downstream recipient.”  Writes Volokh:

If there’s a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there’d be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal break-ins into people’s computers, illegal rifling through people’s desks, and so on.

In the end, the Washington Post may have captured it best, in reporting on another recent leak investigation by the DOJ that involved searching the telephone records of the Associated Press—“the real scandal is what’s legal.”

Supreme Court Rejects Constitutional Challenge to Virginia Public Records Law

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act.  As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution.  The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Citizens of other states therefore do not have a general statutory right under the Act to access public records in Virginia.

The case was brought by citizens of Rhode Island and California.  One sought documents relating to a state agency's delay in filing a child support petition on his behalf.  His request was denied because he was not a Virginia citizen, though he later obtained most of the information he wanted from another agency.  The other petitioner operates a business that collects real estate tax records. His request for tax records from a particular county in Virginia was likewise denied because of his location.

The petitioners filed suit under Section 1983, contending that the residency requirement of the Virginia FOIA statute was unconstitutional.  The Court ultimately rejected those challenges.  With respect to the Privileges and Immunities Clause, the Court emphasized that its protection extends only to privileges and immunities that are "fundamental."  It went on to hold that the opportunity to pursue a business, the ability to own and transfer property, and the ability to access courts, while fundamental, were not abridged by the FOIA provision at issue.  As the Court held,

the [Privileges and Immunities] Clause does not require that a State tailor its every action to avoid any incidental effect on an out-of-state tradesman.

With respect to access to courts, the Court noted that all persons have access to judicial records in Virginia, as they do to information about himself or herself compiled by a Virginia agency. 

In addition, the Court held that access to public information, as a general matter, is not a fundamental matter protected by the Privileges and Immunities Clause.  The Court observed that it

has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.

In the absence of a long-standing right to access government documents writ large--a statutory right the Court pointed out is of fairly recent vintage--states are not required place citizens and non-citizens on equal footing under their public records laws.

Finally, with respect to the petitioners' dormant Commerce Clause argument, the Court found that nothing about the residency requirement in the Virginia FOIA statute was driven by a desire for economic protectionism.  Thus, the act did not regulate or burden interstate commerce in violation of the dormant Commerce Clause.

The upshot of this ruling is that the agencies of government in Virginia may continue to deny public records requests made by out-of-state persons or companies.  This result may lead to businesses in Virginia that specialize in making requests for non-Virginians.  Such a service may be of particular importance to out-of-state media organizations.

Kozinski Concurrence Questions Anti-SLAPP Application

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court.  Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP law was substantive, not procedural, and therefore should be applied by a federal court.

The Ninth Circuit recently issued an opinion in Makaeff v. Trump University that faithfully followed the Court’s precedent in Newsham, applying California’s anti-SLAPP statute to strike a counterclaim claim brought in federal court by Trump University against a woman who had filed a class-action claim against the program founded by Donald Trump to offer real estate investment seminars and training programs.

The bulk of the Court’s opinion focused on whether Trump University was a “public figure,” as required by California’s anti-SLAPP law.  The Court reversed the trial court, holding that it was a “limited public figure.”

Perhaps more interesting, however, were two concurrences written by Judge Kozinski and Judge Paez arguing that Newsham was wrongly decided and that state anti-SLAPP statutes should not apply in federal court.  Both concurrences argue that anti-SLAPP statutes are, in fact, largely procedural, and therefore should not be applied in federal court to supplant federal procedural rules.  Judge Kozinski, known for his sharp writing, called Newsham “a big mistake” that had been “foolishly followed” by the First Circuit and Fifth Circuit.  Judge Kozinski and Judge Paez clearly want the Ninth Circuit to re-examine Newsham en banc.

Judge Kozinski is an influential jurist across the country, and one cannot help but wonder whether his concurrence at this point was also intended to send a message to the D.C. Circuit as it considers Sherrod.  Of course, if the D.C. Circuit were to hold that D.C.’s law does not apply in federal court, there would be a circuit split on that question that might draw the attention of the Supreme Court.

A Salute to Anthony Lewis

We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times.  Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan.  Of course, the latter case is near and dear to the heart of any journalist or media lawyer.

Our colleague, Mark J. Prak, who served as an adjunct professor at Duke University’s Law School and Sanford School of Public Policy, notes that he required his students to read “Make No Law” for some 20 years.  His comments on the book are an appropriate elegy for Lewis:

“Make No Law” is the best book about the First Amendment ever written.  Period.

If you care about the First Amendment and have not read the book, you have some homework to do.  But it will be enjoyable homework.  Several generations of lawyers and students of the First Amendment have benefitted from Lewis’ fulsome description of the people, institutions, and societal forces at play in the story that gave rise to the great case.  Lewis’ detailed account of the Court’s work in Times v. Sullivan and his description of the metamorphosis of the First Amendment throughout the history of the Court is unparalleled and, above all, a great read.

Timing is Everything -- Breitbart Case Highlights Deadline Issue

Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question.  In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed.  It is important to understand the unique timeline of this case to understand the court’s ruling.

The complaint was filed on February 11, 2011.  D.C.’s anti-SLAPP statute, which had been passed three months earlier, did not go into effect until March 31, 2011, after a mandatory review period by Congress.

Under typical circumstances, the rules require the defendants to either answer or move to dismiss the complaint within 21 days of being served.  Of course, most defendants seek, and are granted, additional time to respond to the complaint.  In this case, the defendants sought two extensions of their deadline to respond.  Both were granted by the court, with the consent of the plaintiff, pushing the defendants’ deadline to respond until April 18, 2011.

Importantly, the anti-SLAPP statute requires a defendant moving under the statute to file their motion within 45 days of service of the complaint.  In this case, 45 days fell on March 29, 2011, two days before the anti-SLAPP statute was in effect.  Thus, when the defendants did file their motion to dismiss on April 18, 2011, it was several weeks past the statutory deadline.  In denying the anti-SLAPP motion, the district court held that this was untimely, though the court did not address the fact that it had entered two orders granting the defendants extensions of their deadline to “answer, move or otherwise plead in response to Plaintiff’s Complaint.”

In their opening brief to the D.C. Circuit, the defendants argue that by granting these extensions, the court was, in effect, extending the deadline set out in the anti-SLAPP statute in addition to the deadline to respond under the Rules of Civil Procedure.  In any event, the defendants argue, the legislative history of the D.C. statute and case law from other courts indicate that litigants with pending cases can move pursuant to anti-SLAPP statutes that become effective during the course of the litigation.

In her responsive brief, the plaintiff notes that in seeking the extensions, the defendants did not notify either the plaintiff or the Court that it was seeking to extend the anti-SLAPP deadline, not just the deadline under the Rules of Civil Procedure.  Thus, the plaintiff asserts, the orders granting the extensions were not intended to extend the anti-SLAPP deadline.  This seems to be the view of the district court, as well.

No matter how the D.C. Circuit comes out on this question, this very unique case does raise an interesting practice point. It would seem that, if you are a litigant planning to take advantage of the protections of an anti-SLAPP statute, you would be well-advised to either respond within the deadlines set out in the statute or, when moving for an extension of time, specifically reference the anti-SLAPP statute to opposing counsel and the court.